Arbitration
Rules Update: Improved AAA Commercial Rules; NAF Rules Not An Obstacle To Enforcing Arbitration
October 16, 2013
On October 1, new Commercial Arbitration Rules became effective at the American Arbitration Association (AAA). These rules are likely to apply to all commercial arbitrations filed on and after October 1 (unless an arbitration agreement specifically provides for old rules). The AAA posted its own summary of the changes. Four of the most notable include: Greater specificity about allowable discovery, as well as clear authority for arbitrators to enforce discovery orders or sanction those...
October 16, 2013
On October 1, new Commercial Arbitration Rules became effective at the American Arbitration Association (AAA). These rules are likely to apply to all commercial arbitrations filed on and after October 1 (unless an arbitration agreement specifically provides for old rules). The AAA posted its own summary of the changes. Four of the most notable include: Greater specificity about allowable discovery, as well as clear authority for arbitrators to enforce discovery orders or sanction those...
US Supreme Court Denies Certiorari in Two Arbitration-related Cases
October 15, 2013
On October 7, 2013, the United States Supreme Court denied certiorari to the following cases concerning arbitration, Bakoss v. Certain Underwriters at Lloyds of London Issuing Certificate No. 0510135, 707 F.3d 140 (2d Cir. 2013) and Kramer v. Toyota Motor Corp., 705 F.3d 1122 (9th Cir. 2013). Bakoss concerns the definition of “arbitration” under the Federal Arbitration Act (FAA) and state law, whereas Kramer involved an attempt by a nonsignatory to an arbitration agreement to compel arbitration....
October 15, 2013
On October 7, 2013, the United States Supreme Court denied certiorari to the following cases concerning arbitration, Bakoss v. Certain Underwriters at Lloyds of London Issuing Certificate No. 0510135, 707 F.3d 140 (2d Cir. 2013) and Kramer v. Toyota Motor Corp., 705 F.3d 1122 (9th Cir. 2013). Bakoss concerns the definition of “arbitration” under the Federal Arbitration Act (FAA) and state law, whereas Kramer involved an attempt by a nonsignatory to an arbitration agreement to compel arbitration....
Two U.S. Supreme Court Opinions Enforce Arbitration Agreements
October 14, 2013
Litigants cannot be forced to arbitrate disputes through class arbitration unless they agree to do so. This is the U.S. Supreme Court’s message delivered in two opinions addressing the enforceability of arbitration provisions and class action waivers. With these opinions, the Court signaled that the language of the arbitration agreement controls whether a case may be maintained as a class action or whether a class action is precluded. Choose Language Carefully The Supreme Court issued its unanimous...
October 14, 2013
Litigants cannot be forced to arbitrate disputes through class arbitration unless they agree to do so. This is the U.S. Supreme Court’s message delivered in two opinions addressing the enforceability of arbitration provisions and class action waivers. With these opinions, the Court signaled that the language of the arbitration agreement controls whether a case may be maintained as a class action or whether a class action is precluded. Choose Language Carefully The Supreme Court issued its unanimous...
Handling Your First (or Next) Arbitration 2013
October 11, 2013
Cosponsored by the State Bar of Texas Alternative Dispute Resolution Section, Texas Young Lawyers Association and the American Arbitration Association MCLE Credit: 6.25 hours, including .75 hr ethics which applies to the Texas Board of Legal Specialization in Labor and Employment Law. Austin - Live Presentation December 6, 2013 Texas Law Center Register now to save $50! TYLA and ADR Section members can save $75! More Info or Register If you have any questions or would like to register...
October 11, 2013
Cosponsored by the State Bar of Texas Alternative Dispute Resolution Section, Texas Young Lawyers Association and the American Arbitration Association MCLE Credit: 6.25 hours, including .75 hr ethics which applies to the Texas Board of Legal Specialization in Labor and Employment Law. Austin - Live Presentation December 6, 2013 Texas Law Center Register now to save $50! TYLA and ADR Section members can save $75! More Info or Register If you have any questions or would like to register...
Sixth Circuit Vacates Award Due to Arbitrator’s Evident Partiality
October 11, 2013
In Thomas Kinkade Co. v. White LLC,711 F.3d 719, 720 (6th Cir. 2013), the parties’ dispute involved Nancy and David White’s agreement to be dealers of Kinkade’s artwork. Pursuant to an arbitration clause, they began arbitration in 2002 over Kinkade's claim that the Whites had not paid for artwork, and the Whites' counterclaim that they were fraudulently induced to enter into the dealer agreements. The parties selected two arbitrators who then chose Mark Kowalsky, the "purportedly neutral arbitrator."...
October 11, 2013
In Thomas Kinkade Co. v. White LLC,711 F.3d 719, 720 (6th Cir. 2013), the parties’ dispute involved Nancy and David White’s agreement to be dealers of Kinkade’s artwork. Pursuant to an arbitration clause, they began arbitration in 2002 over Kinkade's claim that the Whites had not paid for artwork, and the Whites' counterclaim that they were fraudulently induced to enter into the dealer agreements. The parties selected two arbitrators who then chose Mark Kowalsky, the "purportedly neutral arbitrator."...
Your Skills: Preparing to Win at Arbitration
October 10, 2013
It's your first, or one of your first, arbitrations. It may have started as a court lawsuit and was compelled to arbitration on a motion, or it may have started with a demand for arbitration pursuant to the client's contract providing for arbitration of disputes instead of court litigation. Either way, in order to get a successful result, the case assessment and strategy requires understanding how arbitration is fundamentally different from a case to be tried in state or federal court. Because...
October 10, 2013
It's your first, or one of your first, arbitrations. It may have started as a court lawsuit and was compelled to arbitration on a motion, or it may have started with a demand for arbitration pursuant to the client's contract providing for arbitration of disputes instead of court litigation. Either way, in order to get a successful result, the case assessment and strategy requires understanding how arbitration is fundamentally different from a case to be tried in state or federal court. Because...
D.R. Horton Hears It from the Ninth Circuit
October 9, 2013
In a case decided this summer, the Ninth Circuit reached an issue it admitted was unnecessary to its decision so that it could critique the National Labor Relations Board (NLRB) opinion in D.R. Horton, 357 N.L.R.B. No. 184, 2012 WL 36274 (Jan. 3, 2012). D.R. Horton held that arbitration agreements with class-action waivers create an unfair labor practice because they restrict employees from engaging in protected concerted activity. D.R. Horton, 357 NLRB 184 (Jan 3, 2012). But in Richards v. Ernst...
October 9, 2013
In a case decided this summer, the Ninth Circuit reached an issue it admitted was unnecessary to its decision so that it could critique the National Labor Relations Board (NLRB) opinion in D.R. Horton, 357 N.L.R.B. No. 184, 2012 WL 36274 (Jan. 3, 2012). D.R. Horton held that arbitration agreements with class-action waivers create an unfair labor practice because they restrict employees from engaging in protected concerted activity. D.R. Horton, 357 NLRB 184 (Jan 3, 2012). But in Richards v. Ernst...
Two Circuit Courts Demonstrate How Difficult It Is To Vacate Arbitration Awards
October 8, 2013
In recent weeks, both the Second and Sixth Circuits showed how difficult it is to vacate arbitration awards. The Second Circuit decision has more drama, so I’ll start there. In Kolel Beth Yechiel Mechil of Tartik-Ov, Inc. v. YLL Irrevocable Trust, __ F.3d __, 2013 WL 4609100 (2d Cir. Aug. 30, 2013), the losing party in an arbitration tried to vacate the award using both Section 10(a)(1) and 10(a)(2) of the Federal Arbitration Act — i.e., corruption and evident partiality. The dispute...
October 8, 2013
In recent weeks, both the Second and Sixth Circuits showed how difficult it is to vacate arbitration awards. The Second Circuit decision has more drama, so I’ll start there. In Kolel Beth Yechiel Mechil of Tartik-Ov, Inc. v. YLL Irrevocable Trust, __ F.3d __, 2013 WL 4609100 (2d Cir. Aug. 30, 2013), the losing party in an arbitration tried to vacate the award using both Section 10(a)(1) and 10(a)(2) of the Federal Arbitration Act — i.e., corruption and evident partiality. The dispute...
Federal Courts Decide Arbitrator Appointment and Disqualification Issues
October 4, 2013
In Adam Tech., the Court of Appeals for the Fifth Circuit affirmed the denial of a motion to appoint an arbitrator. The court held that there had been no “lapse in the naming of an arbitrator” under FAA Section 5, deciding rather that it was Adam’ Tech.’s failure to comply with the International Center for Dispute Resolution’s rules that prompted the ICDR to appoint an arbitrator against Adam Tech.’s objection. The court also held that the challenge to the ICDR’s rules was a procedural...
October 4, 2013
In Adam Tech., the Court of Appeals for the Fifth Circuit affirmed the denial of a motion to appoint an arbitrator. The court held that there had been no “lapse in the naming of an arbitrator” under FAA Section 5, deciding rather that it was Adam’ Tech.’s failure to comply with the International Center for Dispute Resolution’s rules that prompted the ICDR to appoint an arbitrator against Adam Tech.’s objection. The court also held that the challenge to the ICDR’s rules was a procedural...
Court Declines to Stay Litigation of Claims Despite Common Issues With Pending Reinsurance Arbitration
October 3, 2013
This case concerns overlapping reinsurance agreements, retrocession agreements related to the rinsured risks, and guarantees of the retrocession agreements. The reinsurance and retrocession agreements all contain arbitration provisions, but the guarantees do not. Disputes arose, an arbitration commenced concerning the retrocession agreements and a lawsuit was filed on the related guarantees. On a motion to dismiss, the court held that the claimant did not have to “exhaust” efforts to collect...
October 3, 2013
This case concerns overlapping reinsurance agreements, retrocession agreements related to the rinsured risks, and guarantees of the retrocession agreements. The reinsurance and retrocession agreements all contain arbitration provisions, but the guarantees do not. Disputes arose, an arbitration commenced concerning the retrocession agreements and a lawsuit was filed on the related guarantees. On a motion to dismiss, the court held that the claimant did not have to “exhaust” efforts to collect...
